Problem I.C.:

     In February 2007, the International Court of Justice reached its judgment in the case of Bosnia-Herzegovina v. Serbia (mentioned in the casebook at p. 621), finding that Serbia was not responsible under the Genocide Convention for genocide, conspiracy to commit genocide, or complicity in genocide during the Bosnian civil war but was nonetheless responsible for failure to prevent genocide in Bosnia.  In its judgment (for full text, click here) the Court discussed the definition of genocide extensively:

187. . . . It is not enough to establish, for instance in terms of paragraph (a ) [of Article II of the definition, see p. 615 of the casebook], that deliberate unlawful killings of members of the group have occurred. The additional intent must also be established, and is defined very precisely. It is often referred to as a special or specific intent or dolus specialis . . . . It is not enough that the members of the group are targeted because they belong to that group, that is because the perpetrator has a discriminatory intent. . . . The acts listed in Article II must be done with intent to destroy the group as such in whole or in part. The words “as such” emphasize that intent to destroy the protected group.

188. . . . [A]s the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia [stated] in the Kupreškić et al. case:

“. . . [T]he Trial Chamber wishes to stress that persecution as a crime against humanity is an offence belonging to the same genus as genocide. Both persecution and genocide are crimes perpetrated against persons that belong to a particular group and who are targeted because of such belonging. In both categories what matters is the intent to discriminate: to attack persons on account of their ethnic, racial, or religious characteristics (as well as, in the case of persecution, on account of their political affiliation). While in the case of persecution the discriminatory intent can take multifarious inhumane forms . . . in the case of genocide that intent must be accompanied by the intention to destroy, in whole or in part, the group to which the victims of the genocide belong. Thus, it can be said that, from the viewpoint of mens rea, genocide is an extreme and most inhuman form of persecution. . . .

Intent and “ethnic cleansing”

190. The term “ethnic cleansing” has frequently been employed to refer to the events in Bosnia and Herzegovina which are the subject of this case. . . It is in practice used, by reference to a specific region or area, to mean “rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area” (S/35374 (1993), para. 55, Interim Report by the Commission of Experts). . . . It can only be a form of genocide within the meaning of the Convention, if it corresponds to or falls within one of the categories of acts prohibited by Article II of the Convention. Neither the intent, as a matter of policy, to render an area “ethnically homogeneous”, nor the operations that may be carried out to implement such policy, can as such be designated as genocide: the intent that characterizes genocide is “to destroy, in whole or in part” a particular group, and deportation or displacement of the members of a group, even if effected by force, is not necessarily equivalent to destruction of that group, nor is such destruction an automatic consequence of the displacement. This is not to say that acts described as “ethnic cleansing” may never constitute genocide, if they are such as to be characterized as, for example, “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”, contrary to Article II, paragraph (c), of the Convention, provided such action is carried out with the necessary specific intent (dolus specialis). . . .

* * *

     In the end, the ICJ found that the massacre of some 5000-8000 Bosnian men and boys at Srebrenica in July 1995 constituted an act of genocide because it was committed with an intent to destroy a protected group in whole or in part, but that all the other atrocities cited by Bosnia were not committed with such an intent.  The Court awarded no damages to Bosnia for its findings. 

     For a discussion of the Court’s views on the state responsibility of Serbia for the actions of the Bosnian Serbs, see the update to Chapter 14, Problem II.D.1. For the fate of genocide charges sought by the ICC Prosecutor against Sudanese President Al-Bashir, see the update to Problem III.D of this chapter.

Problem II:

     The last several years have resulted in additional prosecutions for U.S. wartime abuses. In 2007, a CIA contractor, found guilty by a federal court in the beating death of an Afghan detainee, was sentenced to 8 years in prison. In April 2009, a U.S. army sergeant was convicted by court-martial of the murder of four blindfolded Iraqi detainees in 2007. The following month, a U.S. district court convicted a former soldier of the rape and murder of an Iraqi girl and the murder of her family in 2006. Previously, four of his accomplices were convicted or pleaded guilty in court-martial proceedings. Most received lengthy prison terms of 90 years to life imprisonment.

     In 2004-08, men detained by the CIA as part of its program against suspected Al Qaeda personnel and subsequently released began speaking with various news media about serious abuses against them. The abuses took place at CIA secret prisons in Thailand, Poland, Romania, and elsewhere. The most credible report came from interviews that the International Committee of the Red Cross conducted with current detainees at Guantanamo who had previously been in CIA custody, a report leaked to the New York Review of Books in 2008 and found here. The report details the methods by which detainees were apprehended, transported, detained, and interrogated. Interrogation methods included suffocation by water, prolonged stress standing, beating and kicking, confinement in a box, sleep deprivation, exposure to cold temperatures, and deprivation of food. The ICRC concluded by stating that “the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constituted torture. In addition, many other elements of the ill-treatment, either singly or in combination, constituted cruel, inhuman or degrading treatment.”

     With the arrival of a new administration in Washington and its disavowal of these methods (see the update to Chapter 7, Problem I), there was much discussion in governmental, NGO, and academic circles about individual accountability for these abuses. On April 24, 2009, the White House Press Secretary stated:

The President strongly believes in the principle . . . that officials that acted in accordance with and in good faith with the legal underpinnings that they’d been provided, that they serve our country admirably and they should not and will not be prosecuted.  I think that gives all the confidence in the world to the men and women that keep our country safe each and every day by providing their services to our intelligence agencies.

On May 21, 2009, President Obama, in a speech at the National Archives, stated:

Now, this is what I mean when I say that we need to focus on the future.  I recognize that many still have a strong desire to focus on the past.  When it comes to actions of the last eight years, passions are high.  Some Americans are angry; others want to re-fight debates that have been settled, in some cases debates that they have lost.  I know that these debates lead directly, in some cases, to a call for a fuller accounting, perhaps through an independent commission.

I’ve opposed the creation of such a commission because I believe that our existing democratic institutions are strong enough to deliver accountability.  The Congress can review abuses of our values, and there are ongoing inquiries by the Congress into matters like enhanced interrogation techniques.  The Department of Justice and our courts can work through and punish any violations of our laws or miscarriages of justice.

     On August 24, 2009, after the release of a 2004 CIA Inspector General report documenting numerous abuses of detainees during their interrogation abroad, Attorney-General Eric Holder announced the appointment of a prosecutor to examine whether any federal laws were violated. He noted that this review did not mean that charges would be filed against anyone, and added, "The men and women in our intelligence community perform an incredibly important service to our nation, and they often do so under difficult and dangerous circumstances. They . . . need to be protected from legal jeopardy when they act in good faith and within the scope of legal guidance. That is why I have made it clear in the past that the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees. I want to reiterate that point today, and to underscore the fact that this preliminary review will not focus on those individuals."

Notes and Questions:

1. If CIA officers relied on legal memoranda from the Justice Department in carrying out torture of detainees, does international law give them a defense? What responsibility lies on the lawyers who wrote them?

2. Is an Administration policy to “focus on the future” consistent with United States obligations under the Geneva Conventions and the Torture Convention to extradite or prosecute those suspected of war crimes or torture?

3. Consider the option of a truth commission that was rejected by President Obama in light of Problem IV below. How similar to or different from other countries is the United States when it comes to issues of transitional justice and the choice between truth and justice?

Problem III.C.:

     The past year saw continued activity in both the ad hoc international tribunals and the hybrid tribunals. The ICTY and ICTR continued to implement their strategy of completing work by finishing more appeals and trials. In the most significant development for the ICTY since the aborted trial of Slobodan Milosevic, in July 2008 the government of Serbia arrested Radovan Karadzic, the leader of the Bosnian Serbs during the wars in Bosnia and the subject of a longstanding arrest warrant for genocide and other crimes. Karadzic had been living in Belgrade for much of the last decade disguised as a bizarre alternative medicine guru and faith healer. He was immediate transferred to The Hague and was still being tried as of the fall of 2009.

     The Extraordinary Chambers in the Court of Cambodia (ECCC), the UN-Cambodia hybrid tribunal set up to try leading members of the Khmer Rouge for their atrocities over 30 years ago, began its first trial in early 2009 against the director of the Khmer Rouge’s main torture and interrogation center. One former senior leader, Nuon Chea, was scheduled for trial as well. None of the other leading Khmer Rouge leaders had yet been indicted. NGOs voiced concerns that the hybrid nature of the tribunal was undermining its effectiveness, accusing the Cambodian staff of corruption and lamenting both the lack of outreach of the ECCC to ordinary Cambodians and the lack of transparency of the court.

Problem III.D.:

     As of the fall of 2009, the International Criminal Court was considering atrocities committed in Uganda, the Democratic Republic of Congo, Sudan (Darfur), and the Central African Republic. Nine cases were at various trial and pre-trial stages. With respect to Sudan, in May 2007, the ICC issued warrants of arrest for Sudan’s Minister of State for Humanitarian Affairs and the leader of the janjaweed militia. In the most controversial chapter in the Court’s short history, in July 2008 the Prosecutor sought from the Court an arrest warrant for Omar Hassan Al-Bashir, Sudan’s President, for genocide, crimes against humanity, and war crimes in connection with Darfur. In March 2009, the pre-trial chamber issued the arrest warrant for crimes against humanity and war crimes, but did not find reasonable grounds to issue an arrest warrant for genocide. As of the fall of 2009, all three defendants remain in Sudan.

     The Prosecutor’s stance and the Court’s response elicited reactions worldwide. Some states who supported the indictment criticized the Prosecutor for overreaching on the genocide charge, especially in light of an opinion from a UN expert commission several years ago that the atrocities in Sudan did not meet the definition of genocide. ICC advocates believed the Prosecutor’s move would play into the hands of opponents of the Court. On the other hand, the arrest warrant, with or without genocide charges, infuriated many constituencies. At an African Union summit meeting held in February 2009, before the Court had issued the arrest warrant, the leaders noted that all of the ICC’s caseload concerned Africa and accused it of advancing a Western strategy of intervention in African affairs. The leaders adopted a resolution in which the AU:

EXPRESSES ITS DEEP CONCERN at the indictment made by the Prosecutor of the International Criminal Court (ICC) against the President of the Republic of The Sudan, H.E. Mr. Omar Hassan Ahmed El Bashir;

2. CAUTIONS that, in view of the delicate nature of the peace processes underway in The Sudan, approval of this application would seriously undermine the ongoing efforts aimed at facilitating the early resolution of the conflict in Darfur;

3. . . . URGES the United Nations Security Council, in accordance with the provisions of Article 16 of the Rome Statute of the ICC . . . to defer the process initiated by the
ICC. . . .

5. FURTHER REQUESTS the Commission to convene as early as possible, a meeting of the African countries that are parties to the Rome Statute . . . to exchange views on the work of the ICC in relation to Africa, in particular in the light of the processes initiated against African personalities, and to submit recommendations thereon . . .;

6. REITERATES AU’s unflinching commitment to combating impunity and promoting democracy, the rule of law and good governance throughout the entire Continent. . . .

     The Prosecutor responded to the AU critics by noting that the caseload responded to the incidence of large-scale atrocities in Africa and that African leaders should take note that the victims of these atrocities were Africans too.

     With respect to the U.S. views of the ICC, the election of President Obama brought about a review of U.S. policy. In an August 12, 2009, speech, U.S. Ambassador the United Nations Susan Rice stated, “We no longer oppose mentions of . . . the International Criminal Court.” But details of the U.S.’s future engagement with the Court were not clear as of the fall of 2009.

Problem IV

     The possibility of universal jurisdiction over certain atrocities has led to a particularly complex set of moves over the fate of Hissene Habré, Chad’s leader in the 1980s. I n February 2000, a criminal court in Senegal indicted Habré, in exile in Senegal since his ouster in 1990, for torture and other crimes, but Senegal’s courts quashed the indictment based on the absence of domestic implementing legislation. After the UN Committee Against Torture – the monitoring mechanism of the 1984 Convention Against Torture -- recommended Habré’s extradition to Belgium for trial, an African Union panel recommended in 2006 a trial in Senegal, which Senegal agreed to conduct but on which it made little progress. In September 2008, fourteen victims of Habre filed complaints with Senegal’s prosecutor, although no major moves toward prosecution had commenced as of the fall of 2009.